Day on Torts

Wrong defendants in certificate of good faith caption should have resulted in dismissal.

Where an HCLA certificate of good faith filed with the Claims Commission named the wrong defendants, dismissal should have been granted.

In Gilbert v. State, No. E2021-00881-COA-R9-CV, 2022 WL 1117453 (Tenn. Ct. App. April 14, 2022), plaintiff filed an HCLA claim against several defendants, including the State of Tennessee as the employer of Dr. Landry, who was allegedly negligent. Plaintiff filed his HCLA complaint against the non-State employees in circuit court, and he filed his complaint against the State with the Division of Claims and Risk Management. Plaintiff attached a certificate of good faith to each complaint pursuant to Tenn. Code Ann. § 29-26-122(a). On the certificate of good faith filed with the Claims Commission case, the heading correctly said it was filed “IN THE CLAIMS COMMISSION FOR THE STATE OF TENNESSEE,” but the parties listed in the caption were the non-State parties. In fact, “[n]othing in [Plaintiff’s] certificate of good faith filed in the Claims Commission identifie[d] the State or Dr. Landry.”

The State filed a motion to dismiss, asserting that the certificate of good faith did not satisfy the requirements of the HCLA. Plaintiff responded by filing a signed statement from a physician “asserting a good faith basis to maintain an action against Dr. Landry and the State.” The Commission ultimately denied the motion to dismiss, calling the wrongly named defendants a “misnomer” and finding that the certificate of good faith was “not defective in such a way that [it] require[d] dismissal of the claim[.]” On appeal, that ruling was reversed.

The Court of Appeals began by looking at Tenn. Code Ann. § 29-26-122(a) and pointing out that it lists two options for what must be stated in the certificate of good faith, with subsection (a)(1) being used “when the expert has certified a good faith basis for the suit based on medical records” and subsection (a)(2) being “relied on when the expert finds that there are material facts that cannot be ascertained from the available records of information, but despite that lack of information there is a good faith basis for the action.” Notably, subsection (a)(2) specifically states that the certificate of good faith “must certify that ‘there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-26-115.” In subsection (a)(1), which was the subsection at issue in this case, the statute only states that the certificate must say that “there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115.” Plaintiff argued that this difference in language meant that his failure to name the proper defendants in the caption of his certificate of good faith did not affect its validity, but the Court of Appeals disagreed.

The Court explained that § 29-26-115 requires HCLA plaintiffs to prove certain elements “in terms of the defendant.” The Court reasoned that “[b]ecause section 29-26-122 requires certification of a basis for the defendant-specific elements established in section 29-26-115, in the view of this court, section 29-26-122 incorporates and requires section 29-26-115’s specificity as to each defendant.” The Court explained:

Claimant’s complaint filed in the Claims Commission is a separate and independent action from the complaint against the other parties filed in circuit court. Claimants were required to file a certificate of good faith specific to the cause of action alleged against Dr. Landry in the Commission action; a certificate identifying only the separate circuit court defendants is not sufficient. The identity of Dr. Landry in the case before the Commission is the most important part of the certificate’s caption, because he is the party who must receive assurance of a good faith ground for commencing the action against him. Without proper identification of Dr. Landry in the certificate, it fails.

The Court continued its analysis by pointing out that one of its prior decisions supported dismissal in this case. In Dotson v. State, No. E2019-00325-COA-R9-CV (Tenn. Ct. App. Dec. 3, 2019), the Court ruled that “language in a complaint cannot substitute for a proper certificate of good faith.” Based on that case, the Court explained that “transposing the provider’s name from the complaint to the certificate,” as the Commission had apparently done, “is reversible error in this claim.”

The Court also noted that while a party may move for additional time within which to file its certificate of good faith, plaintiff here never made such a motion. Tenn. Code Ann. § 29-26-122(c). Further, the statement from the physician eventually filed in response to defendant’s motion to dismiss did not comply with the HCLA requirements. Moreover, while the Commission called the miscaptioned certificate a “scrivener’s error,” the Court of Appeals rejected this characterization, noting that this was a unilateral mistake, and there was “no agreement or mutual mistake by the parties” and “no fraud or inequitable conduct by the State[.]”

Finally, the Court found that the “Commission erred by determining attorney oversight/mistake established good cause to excuse the defective certificate of good faith.” The Court noted that previous cases have ruled that “oversight of plaintiff’s counsel did not establish good cause,” and that “courts have been reluctant to find excusable neglect in circumstances where called-for action was under the control of the party seeking relief and that party failed to act reasonably to make sure that the act was performed.” (internal citations omitted).

Ultimately, the Court ruled that “[n]aming private, circuit court defendants in a certificate of good faith filed in a Commission claim against the State is ground for dismissal,” and it remanded the case with instructions to dismiss.

This is an important reminder of the care that must be taken when filing certificates of good faith. Because the requirements of the certificate of good faith require strict compliance, a proper certificate of good faith is an essential step in an HCLA claim.

This opinion was released three months after oral arguments in this case.

Note: Chapter 46, Section 2 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

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